Montana Attorney General Opinion 15-463

Opinion No. 463. Ta.ution-Counties-County Commis- sionel's-County TI'easuret'-Tax Sales Certificates, HELD: 1. County may redeem lands sold under contract from tax sale cer- tificate assigned by county treasurer to a third person, 2. Such redemption money must be paid out of the general fund and can- not be taken from or withheld later from the various special funds, in ab- sence of statutory authority. 3. County commissioners may in- struct treasurer to not assign tax sale certificates on lands sold under con- tract, when the purchascrs are delin- quent in payment of installment or taxes. January 26, 1!)34. On December 20, 1933, Yellowstone County sold Section 19, Township 3 ~ orth, Range 24 East M. M., to Frank R. Spicer, who, after making two pay- ments. defaulted on his contract. The county, on ~oyember 9, 1!)32, cancelled the contract. After the sale and hefore the cancellation, Spicer defaulted in the payment of the taxes on this land and the tax certificates of sale for 1929 and 1930 totuling about $200.00 were assigned to Mr. Penninger. The land is four or five times the amount of the delinquent taxes and the county desires to redeem from the holder of the tax certificate. UPOIl these facts you have submitted three questions: First, may the county redeem, and, second, if so, from ",hut fund shall the money be taken, and, third, may the county treasurer be instructed to not ussign tax sale certificates issued on lands taken by the county on tax deeds and sold on contract as provided by Chapter 162, Laws of 1929. Section 2201 R. C. M. 1!)21 provided that redemption of property sold for delinquent taxes may be made by the owner or any party interested. The re- cent amendment thereto (Chapter 125, Laws of 1933) reads the same except that instead of the words "any party interested", the words "or having an interest in or lien upon such property", are used. Under this statute as amend- ed there can be no question about the right of the county to redeem for the county has an interest in this property. In regard to the fund or funds that lIIay be used for the payment, there does not seem to be any statute hear- ing upon the point. Chapter 131, J,aws of 1927, covers the case where a sale of land for delinquent taxes thereon is declared void by a jpdgment of court for irregularity in the assessment, levy, or sale. In such cases the money paid is by statute commanded to be refund- ed and so much thereof as has been paid to the state, eity, town or distriet hy the treasurer of the county shall be eharged to the state, city, town or district by such treasurer and deducted from the next money due the state, dty, town or district, respectively, on necount of the taxes paid or eollectcd. On the facts stated above, there is no irregularity in the assessment, levy or sale of land and consequently the sale eannot be declared void by a judg- ment of the eourt, or otherwise. Money paid into the State ~'reasury eannot lie returned without an appropriation by the legislature. Furthermore, the money paid to the different funds have most likely been spent or budgets fixed in reliance thereon. There does not appear to be any statute authorizing the taking of such money from the spe- dal funds, or the withholding of it from other moneys which may be col- leeted. In the a hsenee of such statutor.,· authority, it is my opinion that such money cannot be taken from the spe- dal funds nor ean the amount be de- ducted from other moneys to be col- lected to which the special funds and 322 OPIXIO~S OF THE ATTOH~EY GENERAL the state are entitled. The authority given by the legislature in the instance named is b~' implication denied in oth- er cases. It is my opinion, therefore, that such redemption money will have to be paid out of the general fund. In answering your third question. I 11m not unmindful of Section 2207 which provides: "At any time after IIny parcel of land has been bid in bv . : the. county as the purchaser thereof < __ for taxes, as provided in section 2191, \ . the same not having been redeemed, the county treasurer shall assign all the right of the county therein, ac- quired at such sale, to any person who shall pay the amount for which the ~ame was bid in, • '" *." Under this statute the county treas- urer has no discretion to refuse to as- sign the rights of the county in lands in which the county is not interested, except in the collection of the tax thereon. Where, however, the county has an interest in the land aside from the tax due, the county commissioner,,; have a duty under the powers granted in Section 4465 R. C. M. 1921 as amend- ed by Chapter 100, Laws of 1931. to protect the property of the county. Upon default of the purchaser in pay- ment of either the taxes or the pur- chase price installments, the county commissioners undoubteclly have the right to cancel the contract, when the county holds the tax sale certificates. (See Opinion No. 161, this volume.) Since it may be necessary to protect thc interest of the county in the land, it would seem that an order to the county treasurer to withhold assign- ment until actual cancellation is made is but a step in the same direction and within the powers as well as the duties of the board of county c.'ommissioners. I find no decision by our Supreme court to the contrary and until such decision is rendered, if ever, and until a person who desires to purchase such tax sale certificates, can show a clear legal right thereto, it is my opinion that the board of county commission- ers in the interest of the county, ha~ the right to and should instruct thc county treasurer to withhold aSSi",'11- ments of tax sale certificates on prop- erty covered by delinquent contracts.